A Piercing Problem - 1st Cir. Ducks the Real Question

Posted 11:15 PM by Michael Fox

In a cutting edge decision, the 1st Circuit today upholds Costco's dress policy against a challenge by an employee who argued her right to wear her eyebrow piercing was required by her religious beliefs as a member of the Church of Body Modification (CBM). Cloutier v. Costco (1st Cir. 12/01/04). According to the Court's opinion:

The CBM was established in 1999 and counts approximately 1000 members who participate in such practices as piercing, tattooing, branding, cutting, and body manipulation. Among the goals espoused in the CBM's mission statement are for its members to "grow as individuals through body modification and its teachings," to "promote growth in mind, body and spirit," and to be "confident role models in learning, teaching, and displaying body modification."

The Court also found that the CBM's website was its primary mode of attracting adherents. Included is an application to become a minister of the CBM. When Cloutier was terminated for refusing to remove her eyebrow piercing while working, she filed a charge of religious discrimination with the EEOC which found the her belief in the CBM creed to be "religiously based as defined by the EEOC." A very interesting choice of words.

Given that background one might think the central question to be addressed by the Court is the first element of a prima facie case of religious discrimination, did a bona fide religious practice conflict with an employment requirement? However, that question was decided by neither the district nor the appeals court. In the latter's words:

Determining whether a belief is religious is "more often than not a difficult and delicate task," one to which the courts are ill-suited. Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707, 714 (1981). Fortunately, as the district court noted, there is no need for us to delve into this thorny question in the present case. Even assuming, arguendo, that Cloutier established her prima facie case, the facts here do not support a finding of impermissible religious discrimination.

Unfortunately, the Court's refusal means many employers can now anticipate challenges brought by the CBM faithful (or similar groups) resulting in more litigation, more costs, and at least in many's eyes, questions about the sanity of our legal system.

The district court found that Costco had made a reasonable accommodation, to allow Cloutier to cover her piercing with a band aid or wear a clear plastic retainer, which Cloutier refused. Thus even assuming it was a religious belief, Costco met its burden of accommodation. Unfortunately, there was a dispute as to the timing of the offer of accommodation -- was it before or after the termination? The district court was not bothered that the offer of accommodation might have been after the termination, but the appeals court was. Surveying other courts, it found a split in the circuits. It could have weighed in on that debate, but once again the court played artful dodger:

Even this limited discussion illustrates that the question of whether a post-termination offer extended during the EEOC mediation process can be a reasonable accommodation raises difficult issues. We have yet to consider this question directly and decline to do so here on the limited summary judgment record.

Instead the court based its affirmance of summary judgment for Costco on "an alternative ground advanced by Costco -- namely, that the only accommodation Cloutier considers reasonable would impose an undue hardship on Costco."

Cloutier's only accepted accommodation was a complete exemption from Costco's ban on facial jewelry. Why would that be an undue hardship? The Court's answer:

Granting such an exemption would be an undue hardship because it would adversely affect the employer's public image. Costco has made a determination that facial piercings, aside from earrings, detract from the "neat, clean and professional image" that it aims to cultivate. Such a business determination is within its discretion. As another court has explained, "Even assuming that the defendants' justification for the grooming standards amounted to nothing more than an appeal to customer preference, . . . it is not the law that customer preference is an insufficient justification as a matter of law." Sambo's of Georgia, Inc., 530 F. Supp. at 91.

Although perhaps distinguishable, in many contexts customer preference has proved not to be a justifiable basis for a discriminatory practice. One of the most famous for those old enough to remember the initial "Love Flights" of Southwest Airlines was their "customer preference" argument in support of their female only flight attendant policy. If you have flown SWA in the last 20 years, you know how successful that argument was for them.

Rather than stretch to get a result, the Court should have answered the tough question. Some day some court will.

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